05.01.2020

On April 30, California Governor Newsom issued further guidance and clarification regarding the dos and don’ts of outdoor recreation under the state-wide stay-at-home Executive Order, which has been in effect since March 19.  The Governor announced the new guidance during his public briefing earlier in the day to provide clarification in response to questions he said he had received about the Order’s restrictions on outdoor recreation.  The new guidance assures Californians that “[i]t’s okay to go outside to go for a walk, to exercise, and participate in healthy activities as long as you maintain a safe physical distance of six feet and gather only with members of your household.”  The Governor’s new clarifying guidance also provides “a non-exhaustive list of those outdoor recreational activities.”

The Governor’s announcement comes just one day after six Bay Area counties and the City of Berkeley joined other jurisdictions across the state in a shift toward loosening some restrictions, even while they extended their stay-at-home orders through May 31, 2020.  The Bay Area orders cement a marked trend toward the easing of restrictions in many jurisdictions.

A Return to the Great Outdoors The Trend in Many Places, while Orange County Beaches are Temporarily Closed

Like the Governor’s new clarifying guidance, one major area of loosening restrictions in the new Bay Area orders is in the realm of outdoor recreation.  The Bay Area joins other jurisdictions in loosening these requirements.  Orange County had kept most of its outdoor spaces open, opting not to close down beaches and parks when other places took that step.  This triggered criticism from Governor Newsom and some LA County officials over images of crowed Orange County Beaches.  The criticism came to a head on Thursday, April 30, when Governor Newsom ordered the temporary “hard close” of all Orange County beaches.  The directive only applies to beaches in Orange County, which has already prompted local officials in certain Orange County cities to authorize legal action to challenge the Governor’s new Order.

In contrast to the Orange County beach closure directive aimed at discouraging large gatherings and congregations of individuals, the Governor’s non-exhaustive list of outdoor recreational activities permitted so long as Californians “maintain a safe physical distance of six feet” include: athletics, badminton (singles), throwing a baseball/softball, bmx biking, canoeing (singles), crabbing, cycling, exploring rock pools, gardening (not in groups), golf (singles, walking – no cart), hiking (trails/ paths allowing distancing), horse riding (singles), jogging and running, kite boarding and kitesurfing, meditation, outdoor photography, picnics (with your stay-home household members only), quad biking, rock climbing, roller skating and roller blading, rowing (singles), scootering (not in groups), skateboarding (not in groups), soft martial arts – tai chi, chi kung (not in groups), table tennis (singles), throwing a football, kicking a soccer ball (not in groups), trail running, trampolining, tree climbing, volleyball (singles), walk the dog, wash the car, watch the sunrise or sunset, and yoga.

On April 20, Ventura County began allowing its residents to “engage in outdoor activity, provided the persons comply with the Social Distancing Requirements, such as, by way of example, golfing, tennis, pickle-ball, walking, hiking, running, bicycling, pleasure driving and working around their places of residence, including gardening.”  To that end, Ventura opened its beaches, pier, promenade, and parks.

Also on April 20, Riverside County began allowing use of its “[p]arks, trails, and other outdoor areas” for “walking, jogging, hiking, biking, equestrian activities, and other non-contact outdoor sports such as golf, pickleball and tennis.”

San Diego County took a step in the same direction this past week, opening its parks, beaches, and golf courses to some public use in a process that began April 27 and that will loosen effective tomorrow.  Parks and outdoor recreational areas may open as long as they comply with a “parks social distancing protocol”, and no group sports are allowed outside of single family or households.  Beaches are open for “active” use such as walking and running, and shorelines are open to many water activities like swimming, surfing, kayaking and paddle-boarding, but not to group activities, sunbathing, or recreational boating.  Golf courses are open with limited use, but must submit a copy of the completed “Golf Course Physical Distancing & Safety Plan” to the Public Health Officer at least two days before opening.  Further, golf courses “[s]hall conduct a temperature screening of all employees and customers and anyone with a temperature of 100 degrees or higher shall not be permitted to enter the facility.”

Most recently, six Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—and the City of Berkeley issued joint orders today that loosen restrictions on outdoor recreation at parks, beaches, and other open spaces.  Golf courses, skate parks, athletic fields, and other shared outdoor facilities may open, provided they meet social-distancing and other requirements.  However, local closures are still in effect within the counties.  Further, there is still no use allowed for areas that are “high-touch”, or that encourage gathering.  This includes gyms, playgrounds, pools, and dog parks, among others.  Sports or activities that include the use of shared equipment also remain restricted.

Notably, Los Angeles County has continued to keep its beaches, parks, and golf courses closed.  L.A. County has also implored its residents not to travel to neighboring counties to take advantage of their looser restrictions on recreation activities for fear of it undermining L.A. County’s efforts to curb the spread of COVID-19 within the county.  L.A. is keeping its restrictions in place, for now.

The Governor’s forthcoming clarification and guidance for outdoor recreation activities under the Governor’s forthcoming order, which are expected to include guidance about maintaining social distancing and other precautions, will likely also apply notwithstanding any less restrictive requirements under any of the recently loosened county and city orders.

While Some Restrictions are Eased, Many Stay-At-Home Orders are Extended, and Face Covering Requirements Become the New Norm.

Even while many jurisdictions are loosening restrictions on outdoor recreation, many are simultaneously extending their stay-at-home orders, while also requiring the general public to wear face coverings.

In one of the largest moves of the week, the six Bay Area counties and the city of Berkeley extended their stay-at-home order through May 31.  San Diego County followed suit by extending its order indefinitely.  More extensions are likely statewide, as Riverside, San Benito, Monterey, Santa Cruz, and Sonoma Counties all have orders expiring within the next few days.

With respect to face coverings, Riverside County announced today that it is extending its face-covering requirements for its residents until June 19, and Monterey County has also put one into effect.  Effective tomorrow, San Diego County is requiring all members of the public to wear face covering indefinitely.  Earlier this month, Los Angeles County put face-covering requirements in place for the general public on April 7, and the counties of San Francisco, Contra Costa, Marin, Alameda, San Mateo all implemented the same on April 17.  San Benito and Santa Cruz Counties joined in on April 24.

Some jurisdictions, like Santa Clara, Orange, and Sacramento, have declined to implement general face covering requirements.  But the trend toward face coverings becoming the “new normal” is firmly in place.  Effective May 4, 2020, Santa Clara—which had been one of the last Counties in the Bay Area not to require coverings—issued a requirement for employees and customers of open businesses to wear coverings when in the facilities.  Similarly, following the lead of several cities within its borders requiring face coverings, Orange County also recently began requiring essential workers to wear face coverings, while several cities within Orange County require all residents to wear face coverings in public.

Other Loosened Restrictions in the Bay Area

The new Bay Area order also loosens up areas of restrictions as follows:

• All construction projects may resume. However, they must comply with a new written “Construction Project Safety Protocol”.  Exemplars of these protocols are attached as exhibits to the back of the Orders, like San Francisco’s here.
• Commercial and Residential real estate transactions may fully resume. However, restrictions on in-person viewings and appointments are in effect.
• Childcare establishments and educational/recreation programs may open on a limited basis. They may operate to provide care and supervision to children of those who work in essential or outdoor businesses.  Operations must be carried out with the same 12 or fewer children in the same group each day, among other restrictions.
• “Outdoor Businesses” allowed to reopen. This applies to gardening/agricultural/landscaping type businesses.  It does not include outdoor restaurants, cafes, or bars, which remain closed.
• Updated Written Social Distancing Protocols. All businesses that open must ensure that they implement and comply with an updated written social distancing protocol.  Among the updates is a requirement that any businesses that opens must ensure that personnel and customers wear face coverings.  Exemplars of the updated protocols may also found attached as exhibits to the back of the Orders.
• All residential moves may proceed.

Conclusion and Next Steps

The patchwork of orders across the state is tending toward loosened restrictions, particularly in the area of outdoor recreation.  However, it remains a complex web to navigate as orders continue to be extended and revised.  Businesses and individuals should take care to stay up to date on the latest restrictions in their respective jurisdictions. 

If you have questions about the requirements of any of the State, County, or City Orders, contact the attorneys at AALRR for specific solutions to the legal issues impacting your business.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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